The presumption of jointness in a Hindu family is stronger in the case of brothers than in the case of cousins. This presumption applies to Dayabhag Law as well. The onus of proof shifts to the person who claims a particular property as his self-acquired property, where the family possessed some joint property which may have formed the nucleus from which the property may have been acquired.

( 1 ) THE plaintiff's have alleged that defendant No. 1, Mahadev Missir, is the elder brother of plaintiff No. 1, Basudeb. They hail from U. P. About 30 years ago, the plaintiff No. 1 and defendant No. 1 came to Kharagpur in the district of Midnapore in search of employment. They settled there, lived in joint mess and jointly dealt in ready-made garments, blankets, clothes etc. Mahadev was the karta of the joint family and he used to supervise the business. Subsequently, their business flourished. Out of the Ejmali fund, Basudeb and Mahadev Missir acquired properties from time to time. Some of the acquisitions were made in the name of Basudeb Missir, some in the name of Mahadev Missir, some in the name of plaintiff No. 2, son of plaintiff No. 1, and some in the names of defendants Nos. 2 and 3, sons of Mahadev. But all the properties listed in the schedule to the plaint are joint family properties. About five or six years ago, plaintiff No. l and Mahadev Missir fell out. Mahadev disclosed that all the properties were his self-acquired ones and the plaintiff's had no right therein and also asserted that the properties had been recorded in his name in the R. S. Khatian. So the plaintiff's asked for partition. No partition was effected by the defendants. Hence, the suit for partition regarding the plaintiff's 8 annas share.

( 2 ) DEFENDANT No. l has filed a written statement denying the plaintiff's allegations. He has stated that though he came to Kharagpur, the business carried on by him and by Basudeb were separate ones. The plaintiff's have no interest therein. He derived income from his own business and acquired the properties from his own fund.

( 3 ) THE learned subordinate Judge accepted the plaintiff's version. He stated that the properties in question were the joint family properties of the parties and they were not separately acquired by the defendant No. 1, as alleged. Excepting the land of Khatian No. 251, the suit was decreed. So, this appeal by the defendants.

( 4 ) IT has been contended on behalf of the appellants that P. W. 1, Basudev Missir, plaintiff No. I, has not stated that he brought any money from U. P. When he came down to Kharagpur. There is no evidence that there was any nucleus with which the alleged acquisition could have been made. Basudeb has stated that there are no accounts of his separate business. The learned Subordinate Judge ought not to have accepted the plaintiff's version. P. W. 2 Dhanu, and P. W. 3, Ashu Dolai, are unsummoned witnesses. D. W. 1 Mahadev Missir, defendant No. 1, has stated that he had his separate licence Moreover, a fundamental mistake was made by the court below because the onus on the important point of joint acquisition was misplaced. The plaintiff's are bound to prove their own case. Since the plaintiff's failed to substantiate their allegations, the suit is bound to be dismissed. Moreover, paragraph 1 of the plaint indicates that the parties are possessed of some properties in U. P. But those properties have not been brought into the hotch-potch. So the suit is not maintainable because it is bad for partial partition.

( 5 ) THE first question arises whether the suit is bad for partial partition. No issue was framed on this and no such evidence was adduced. It appears from the judgment that the Issue No. l relating to the maintainability of the suit was not pressed. Law in respect of partial partition is well settled after the Bench decision of Rajendra v. Brajendra in 37 Cal LJ 191 : (AIR 1923 Cal 501 ). Sir Ashutosh Mookerjee speaking for the bench has stated that in a suit for partition all the properties must be brought into the hotch-potch. But there are exceptions, i. e. , when the properties are situated in different districts, there is different law for the property which is distantly situated, when the property is not partible and when the property is not in possession of the coparceners and may consequently be deemed to be really not availa